Right Thinking from the Left Coast

Tag: Patriot Act

Well, it’s not the complete repeal I’d prefer, but it’s an improvement:

In a significant scaling back of national security policy formed after the Sept. 11, 2001, terrorist attacks, the Senate on Tuesday approved legislation curtailing the federal government’s sweeping surveillance of American phone records, and President Obama signed the measure hours later.

…

The legislation signaled a cultural turning point for the nation, almost 14 years after the Sept. 11 attacks heralded the construction of a powerful national security apparatus. The shift against the security state began with the revelation by Edward J. Snowden, a former National Security Agency contractor, about the bulk collection of phone records. The backlash was aided by the growth of interconnected communication networks run by companies that have felt manhandled by government prying.

The storage of those records now shifts to the phone companies, and the government must petition a special federal court for permission to search them.

…

The Foreign Intelligence Surveillance Court, for the first time, will be required to declassify some of its most significant decisions, and outside voices will be allowed to argue for privacy rights before the court in certain cases.

So a little more transparency, a small speedbump between the government and our meta-data. By itself, it’s a very tiny win against the gigantic surveillance state President Obama controls.

But the bigger win could be the political victory. The pro-police-state forces threw out their usual apocalyptic rhetoric while they tried to force the Senate to reauthorize the Patriot Act without even a debate. And, for the first time, it didn’t work. Rand Paul, many Democrats and enough Republicans weathered the storm and got some small changes. For the first time, someone in Congress had enough of a spine to call bullshit on their bullshit. And that could pay off down the road:

Senator Mike Lee, a Utah Republican, and Senator Leahy made it clear after passage that curtailing the phone sweeps might be only the beginning. The two are collaborating on legislation to undo a provision in the Electronic Communications Privacy Act of 1986 that allows the government to read the contents of email over six months old. House members and senators from both parties are already eyeing a section of the Foreign Intelligence Surveillance Act that they say has also been abused by the government.

Let’s hope they keep pushing. The surveillance state has legions of supporters. The pushback has begun. It won’t end until we have our basic civil liberties back. And that might take decades.

So today, Rand Paul engaged in his second filibuster, this time against the Patriot Act, talking for ten hours. Specifically, he was filibustering against Section 215, which supposedly enables the NSA meta-data collection program.

I don’t think the Patriot Act should be renewed. This has been primarily used as a smokescreen for prosecutions on drug and other non-terrorism charges. It was passed in the first place on false claims that 9/11 happened because the government didn’t have the powers within the Patriot Act. If it must be passed however, it should only pass after the USA FREEDOM Act directly curtails the NSA’s power.

I have my disagreements with Paul, but this is another occasion on which he has made me proud. Let’s hope other Senators will stand not just with Rand, but with us.

You should read the NYT’s story about PRISM. It makes everything consistent: Greenwald’s original report, the tech companies denial and the reports we’ve been hearing off and on for the last seven years. Money quote:

Each of the nine companies said it had no knowledge of a government program providing officials with access to its servers, and drew a bright line between giving the government wholesale access to its servers to collect user data and giving them specific data in response to individual court orders. Each said it did not provide the government with full, indiscriminate access to its servers.

The companies said they do, however, comply with individual court orders, including under FISA. The negotiations, and the technical systems for sharing data with the government, fit in that category because they involve access to data under individual FISA requests. And in some cases, the data is transmitted to the government electronically, using a company’s servers.

“The U.S. government does not have direct access or a ‘back door’ to the information stored in our data centers,” Google’s chief executive, Larry Page, and its chief legal officer, David Drummond, said in a statement on Friday. “We provide user data to governments only in accordance with the law.”

Statements from Microsoft, Yahoo, Facebook, Apple, AOL and Paltalk made the same distinction.

But instead of adding a back door to their servers, the companies were essentially asked to erect a locked mailbox and give the government the key, people briefed on the negotiations said. Facebook, for instance, built such a system for requesting and sharing the information, they said.

The data shared in these ways, the people said, is shared after company lawyers have reviewed the FISA request according to company practice. It is not sent automatically or in bulk, and the government does not have full access to company servers. Instead, they said, it is a more secure and efficient way to hand over the data.

Tech companies might have also denied knowledge of the full scope of cooperation with national security officials because employees whose job it is to comply with FISA requests are not allowed to discuss the details even with others at the company, and in some cases have national security clearance, according to both a former senior government official and a lawyer representing a technology company.

This is less alarming than the initial reporting but still very very concerning. Keep in mind that, according to the Verizon story, the FISA court has been granting extremely broad warrants for surveillance. Keep in mind also that, according to the FISA laws, communications involving US citizens can be monitored.. Think about how many people overseas are on Twitter, on Facebook, use Google or read this very blog.

Do we have reason to be worried that these powers — which were a secret until now — will be abused? We already have reports that electronic communications of innocent Americans have been “accidentally” intercepted. The NSA is also trying to prevent the release of a Court opinion finding that they had engaged in unconstitutional spying.

And even if this weren’t the case, we know that these powers, especially when they lurk in secret, only have a tendency to expand. Powers intended for terrorism rapidly extend to drugs (which often involve foreign agents) and are then extended to ordinary crime. Think about the Constitution-shredding tactics used in the War on Drugs — asset forfeiture, for example — and how they been extended beyond the War on Drugs. Once you give our government a hammer, they will get the courts to rule that everything is a nail. I’m not particularly moved by the arguments — put forward by DNI Clapper and his apologists — that national security has been compromised. Not when some of our basic liberties are at stake. I’m pretty sure the terrorists are either completely clueless or avoid electronic communications, having assumed that something like this was going on.

The one thing I keep hearing is that we need to have a public debate about this. But keep in mind that the public debate hasn’t happened yet and is only happening to the extent that it is because of the leak. The Administration’s defenders would rather we not have had the debate at all.

Ah, the Administration’s defenders. Libertarians and some conservatives are responding to this revelation as you might expect. But the response of the Left Wing is disappointing if unsurprising. You know how we’ve used the terms “Bush Derangement Syndrome” and “Obama Derangement Syndrome”? They describe someone who has an irrational hatred of one of the two Presidents to the point where they always assume the worst motivations, the worst intentions and instantly believe any absurd story that emerges about them. Well, in the past few days, we’ve been seeing a lot of “Obama Defense Derangement Syndrome”: people who believe that any criticism of Obama falls into the ODS category (or is a sign of crypto-racism). Their increasingly mindless defense of the President is not based on any facts or any actions of his; they are based on who his critics are. So if Rand Paul disagrees with the President … well, Rand Paul is a nut so the President’s actions must be defensible.

The ODDS starting immediately with people saying the Prism slides didn’t look professional and might be faked. After they were confirmed, they jumped on the tech companies denial of the existence of the system (conveniently ignoring the Greenwald specifically mentioned those denials in his original report). Then they said that Bush started it (true enough; but Obama ran against that and has now brought it to its apotheosis). Now they’re claiming that we had a public debate (the tense is wrong; we’re having one now, thanks to the leak).

They have further parroted the President’s lie that Congress and the Courts signed off on all this without a qualm. But Senators Udall, Wyden and Paul were among many who objected to these powers, who tried to get basic civil liberties protections into the laws and warned us about the surveillance state that was being built. Senator Sensenbrenner, one of the architects of the Patriot Act, blasted the President for going beyond what was intended and not getting Congressional approval. As noted above, the Courts have pushed back on this, to the extent that they’ve been consulted. And, it bears repeating, much of the detail is in secret with many participants forced into silence under penalty of law. Citing the Sunday Morning Talkshow Dipshits as though they were an authority is simply abandoning your duty as a citizen.

The biggest tell for ODDS is ad hominem attacks on his critics. And, in this case, it’s attacks on Glenn Greenwald. I have my issues with Greenwald. I agree with him on civil liberties but the list of things I disagree with him on — Bradley Manning, Israel, the War on Terror, healthcare — is very long. But to suggest, as many are doing, that his revelation is based on some kind of personal animus against the President is ridiculous. Greenwald calls it as he sees it. He was highly critical of Bush, too. He is highly critical of almost everyone. He is always inflammatory on the subject of civil liberties. This sometimes leads him to overstate his case or assume the worst. But that’s his way and it always has been.

In this case, he has a legitimate story: the federal government has now admitted that the infrastructure exists for massive electronic surveillance; that they are already using this with FISA on foreign targets; that they have been able to get broad court orders to get meta-data from cell phone companies (which can be as intrusive as actual wiretapping). Claims that this reporting is “irresponsible” or “hysterical” misses that we should be kind of hysterical about broad surveillance powers. Reporting on this kind of government program is the press’s job. And responding to it by saying that we should just trust our government, that we should let Obama make these decisions, that “no one elected Glenn Greenwald” is subservient hogwash.

There is a need for our government to keep some things secret (and Greenwald specifically refused to publish technical details of PRISM for that reason). All Americans understand that there are things the government has to do on the quiet. But the creation of a massive surveillance state — a state that could be turned on us quite easily — is not something we should just trust our politicians to execute, no matter who they are or how much of a tingle they might give us up our leg.

Postscript: The identity of the leaker is now known. He has fled to Hong Kong, citing their commitment to civli liberties. This frankly strikes me as deranged, given Chinese law. I suspect the real reason for going there is to avoid extradition.

PPS: As for the political impact of all this, I suspect it will be small. Unfortunately, the American people are all too willing to ignore encroachments on their liberty.

The National Security Agency is currently collecting the telephone records of millions of US customers of Verizon, one of America’s largest telecoms providers, under a top secret court order issued in April.

The order, a copy of which has been obtained by the Guardian, requires Verizon on an “ongoing, daily basis” to give the NSA information on all telephone calls in its systems, both within the US and between the US and other countries.

The document shows for the first time that under the Obama administration the communication records of millions of US citizens are being collected indiscriminately and in bulk – regardless of whether they are suspected of any wrongdoing.

The secret Foreign Intelligence Surveillance Court (Fisa) granted the order to the FBI on April 25, giving the government unlimited authority to obtain the data for a specified three-month period ending on July 19.

Under the terms of the blanket order, the numbers of both parties on a call are handed over, as is location data, call duration, unique identifiers, and the time and duration of all calls. The contents of the conversation itself are not covered.

The order was implemented ten days after the Boston attacks. So while this wasn’t used for the investigation there, it was very likely a result of it.

The EFF notes that his power was assumed under the Patriot Act. However, the Patriot Act does not allow for this kind of dragnet universal surveillance. It only allows surveillance of those suspected of terrorist activity. I’m a Verizon customer so it’s likely that my calls are being tracked. Unless the government knows about my quiet connections to the Guinness Drinking Front, they have no reason whatsoever to track my calls. The government has stretched its anti-terror powers toward universal surveillance. We were warned about this. Lee warned about this repeatedly. So did others:

The court order appears to explain the numerous cryptic public warnings by two US senators, Ron Wyden and Mark Udall, about the scope of the Obama administration’s surveillance activities.

For roughly two years, the two Democrats have been stridently advising the public that the US government is relying on “secret legal interpretations” to claim surveillance powers so broad that the American public would be “stunned” to learn of the kind of domestic spying being conducted.

Because those activities are classified, the senators, both members of the Senate intelligence committee, have been prevented from specifying which domestic surveillance programs they find so alarming. But the information they have been able to disclose in their public warnings perfectly tracks both the specific law cited by the April 25 court order as well as the vast scope of record-gathering it authorized.

This also explains why several senators from both parties, including Wyden, have been pushing to protect phone records for warrantless searches.

You may remember that a similar controversy erupted under President Bush, when it turned out that they were obtaining the phone records of millions of Americans. This is much more extensive. And I will bet you that it gets a tiny fraction of the outcry that Bush’s surveillance did.

Update: Someone pointed out on Twitter that the Verizon order is the one we know about. It’s likely there are others. Verizon was under strict secrecy to note reveal the existence of the program so others would also be under such orders.

Justice Department documents released today by the ACLU reveal that federal law enforcement agencies are increasingly monitoring Americans’ electronic communications, and doing so without warrants, sufficient oversight, or meaningful accountability.

The documents, handed over by the government only after months of litigation, are the attorney general’s 2010 and 2011 reports on the use of “pen register” and “trap and trace” surveillance powers. The reports show a dramatic increase in the use of these surveillance tools, which are used to gather information about telephone, email, and other Internet communications. The revelations underscore the importance of regulating and overseeing the government’s surveillance power.

Here’s two graphs, one showing the number of orders, the other the number of people affected:

That, my friends, is one exploding surveillance state. Under Obama, the number of people being surveilled has tripled. These two methods allow police, without a warrant, to monitor every number you call and that calls you. Thanks to the PATRIOT Act, they can also get whatever e-mail addresses and IP’s you interact with. They can track your movements from cell phone towers. They are not supposed to listen to calls or read e-mails. But there really isn’t a mechanism to prevent it or punish it either.

Still, the allowed information alone, according to most researchers, is enough to reveal an astonishing amount of information about you. Do we want to take bets on whether this is being used exclusively to fight terrorism? Remember, as Alex pointed out, they can now keep this information, even on non-terrorism cases, for five years. Remember that TSA has already expanded their mission to find people with drugs and other contraband. This isn’t about terrorists blowing things up. This is a generalized tool designed to whittle away at our privacy. And Obama is exploiting it.

As I’ve written extensively before, Bush is only a temporary occupant of the White House, and every power that we give to him now will be available to every president who follows him. So many people don’t have a problem with these type of warrantless searches because, on some level, they trust Bush to do the right thing. My problem is that a future president could very easily use these same powers to do some very, very bad things, and as a conservative, I can’t support setting up this type of perilous political situation.

Pen register and trap and trace doubled under Bush and were rising steadily when he left office. But he was a piker compared to the uber-liberal professor now ensconced in the Oval Office who basically took these powers, said “thanks” and exploded them beyond all measure.

The ACLU, bless them, has been all over Obama on this, fighting numerous legal battles to just to find out what they’re doing. But the rest of the Left? The people who called Bush a fascist? You can hear the crickets.